Two years after the Indiana General Assembly passed a measure setting the circumstances for certain criminal records to be sealed, legislators are poised to take the step to full expungement.
This is not an issue about being soft or tough on crime, proponents say. In fact, the bill does not address how Indiana treats convicts. Rather, it is focusing on how the state treats people who have followed the rules and made every effort to put their lives on the right track.
House Bill 1482 offers expungement for Class D and higher felonies, excluding sex and violent offenders. In addition, it allows a Class D felony to be converted to a Class A misdemeanor as a condition of sentencing. Authored by Rep. Jud McMillin, R-Brookville, the legislation passed the House by an 82-17 vote and is now before the Senate.
Opponents of the bill said the focus should be on reentry programs. A blanket expungement approach does not address the struggles ex-offenders face when they are released from prison.
Still, the bill has gained bipartisan support. Republicans and Democrats in the House joined as co-authors of the measure, and in the Senate, it is being sponsored by two Republicans and two Democrats.
“I think this is one of those issues that brings folks who are often at different ends of the political spectrum together,” said Andrew Cullen, legislative liaison at the Indiana Public Defender Council. “Legislators of a conservative nature believe in redemption while legislators of a more liberal nature believe in the concept of second chances.”
Exercising personal responsibility
HB 1482 allows courts to expunge an ex-offender’s record of nonviolent felony convictions if the individual has not committed a new offense or has no new charges pending within 10 years of the conviction or within five years after completing the sentence (which ever is later).
The bill also requires the sentencing court to clean the record of certain nonviolent Class D felony and misdemeanor convictions as well as certain delinquency adjudications. This does not apply to sex or violent offenders, and individuals convicted of perjury or official misconduct are not eligible.
It also grants the courts the option of wiping the record of all other felony convictions provided the individual is neither a sex nor violent offender, has not been convicted of perjury or official misconduct, or has not been convicted of a felony that resulted in a serious bodily injury.
McMillin said having the opportunity to expunge their convictions will give ex-offenders an incentive to stay out of trouble. The benefit of reducing repeat offenders will spread to taxpayers since the state will not need to spend money to incarcerate these individuals or to provide public assistance once they are released.
Criminal records, he continued, hinder individuals from getting a stable job and gaining access to rehabilitation programs. By wiping the slate clean, these individuals will be able to “exercise personal responsibility and take care of themselves” because they will have an easier time finding employment.
“All of us respond well to having goals,” he said. “If the end gain for you is what you want, you’re going to work hard to get it.”
Sen. Mike Young, R-Indianapolis, one of the sponsors of the bill in the Senate, agreed with McMillin.
“We want people to be productive in society and not only provide for themselves but pay taxes so we can take care of people who truly need help,” he said.
Concerns over the automatic expungement provision led Rep. Ryan Dvorak, D-South Bend, to vote against the legislation. Criminal records exist for a reason, he said, and not all low-level offenders deserve to have their convictions cleaned.
“I just don’t think it’s a really well-thought-out way to go at this issue,” he said.
Dvorak maintains reentry programs are the better solution for helping ex-offenders reintegrate into society and preventing recidivism. Expungement does not address issues such as low job skills, inadequate financial knowledge and limited education that hamper many individuals once they are released from jail.
In addition, the five- to 10-year waiting period in HB 1482 is when ex-offenders are most vulnerable, Dvorak said. Instead of offering the opportunity to eradicate their record, the focus should be on getting these individuals into productive employment.
Although this bill gives courts little leeway in denying expungements to Class D felony offenders, McMillin pointed out individuals wanting to clean their records will have to go through a process.
They will have to do a lot, namely hire an attorney and petition the court, he said. The process will weed out those who are not really serious about getting their lives together.
He does not expect the petitions to add much to the courts’ workload. The court which handled the conviction will review the expungement request, and there will be no jury trial or introduction of evidence to work through.
McMillin envisions adults who did “silly things” in their youth that are now holding them back will greatly benefit from expungement. He pointed to one man he met who was barred from coaching his son’s youth football team because of a theft conviction he had 20 years ago that arose from an argument over rent with a former college roommate.
The measure opens a whole new area of practice for criminal lawyers, Dvorak said. It also raises the possibility of inconsistent application. In particular, since the courts would have discretion in deciding whether or not to grant an expungement for the higher felonies, which petitions are approved and which are denied could vary widely from one jurisdiction to the next.
As more expungement applications are submitted, he believes there will be an outcry from victims, community members and business owners.
“I think employers really do have the right to know,” Dvorak said. “It’s not necessarily in the public’s interest to hide information from the public.”
Cullen sees a role for expungement.
Under the Indiana Criminal Code, people can be convicted of a felony for stealing a pack of gum. A conviction on their record, even for a small offense, will follow them around for the rest of their lives.
“The Legislature is wisely reconsidering that,” Cullen said.
In 2011, the Indiana General Assembly passed HB 1211 which enabled individuals who had been charged with a crime to petition the court to restrict access to their arrest records. McMillin described this legislation as a “baby step” without which the Statehouse would likely not be considering full expungement today.
Young conceded the restriction bill had problems. Limiting access to the records was cumbersome and caused court clerks along with reporting agencies to worry they could be held liable if the restriction was not done correctly.
Expungement is better, the senator said.
McMillin’s bill would wipe computer databases clean of expunged convictions. The physical records would be put into one location where prosecutors could access them but only with the court’s permission.
However, Dvorak contends no record is ever completely expunged. Employers who have the resources will be able to dig up the arrest documents while small businesses that only have the ability to run a background check through the Indiana State Police will be at a disadvantage.
Even so, McMillin is hopeful ex-offenders will go through the process to have their records scrubbed. Echoing his previous points, he explained these individuals would lose the stigma that is keeping them from the workforce and the benefit would snowball to taxpayers.
“I really do think we need to rethink our approach to these things,” he said.•